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Citation
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Judgment date
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| December 2019 |
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Reported
A tendered resignation does not limit compensation for an unfair dismissal once termination is by dismissal; arbitrator’s s194 award restored.
Labour law – Unfair dismissal – Compensation under s 194(1) – Arbitrator's discretion – review only if capricious, wrong principle, bias or absence of substantial reasons (Kemp test). Resignation – relevance of a tendered resignation to quantum where dismissal is found – resignation induced or not freely made is irrelevant once dismissal occurs. Costs – individual litigant unassisted by a union may recover taxable costs, including disbursements and, in principle, the reasonable value of her own legal expertise.
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11 December 2019 |
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Reported
Employee failed to disclose a conflict of interest but dismissal was disproportionate; reinstatement ordered from 1 July 2019.
Labour law – misconduct – conflict of interest – duty to disclose involvement with service providers; credibility and holistic assessment of evidence; sanction appropriateness – dismissal disproportionate; reinstatement ordered from specified date.
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11 December 2019 |
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Reported
Employer need not prove employee’s guilt to justify precautionary suspension; compensation reduced as excessive.
Labour law – precautionary suspension – employer need not prove employee’s guilt at arbitration; relevance limited to allegations existing at suspension date; procedural fairness; review of arbitrator’s compensation award – standard is whether discretion was exercised capriciously, upon wrong principle, with bias, without reason, or no reasonable decision-maker could reach the result; quantum reduced for contributory employee conduct and other relevant factors.
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11 December 2019 |
| November 2019 |
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Reported
Arbitrator’s dismissal of a senior employee for coordinating fraud was reasonable under Sidumo; Labour Court erred and costs order reversed.
Review of arbitration award — Sidumo reasonableness standard; interference only if no reasonable arbitrator could reach decision. Consistency of discipline — proper to distinguish sanctions where senior employee coordinated misconduct. Managerial seniority, instruction of subordinates, access and lack of remorse as aggravating factors justifying dismissal. Labour Court costs — Zungu approach: costs in Labour Court are exceptional and must be fair and justified.
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26 November 2019 |
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Reported
An employee may pursue an independent contractual claim in the Labour Court despite an unsuccessful CCMA unfair dismissal claim.
Labour law – jurisdiction – concurrent jurisdiction of Labour Court and civil courts to hear contract of employment claims (BCEA s 77). Distinction between unfair dismissal claims under the LRA and independent contractual claims arising from termination. Res judicata and forum shopping – unsuccessful CCMA arbitration does not bar separate contractual claims. LRA s 195 – compensation under LRA is additional to contractual remedies. Relevant authorities: Makhanya (SCA); Gcaba (Constitutional Court); James distinguished.
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25 November 2019 |
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Reported
Whether an employee’s retirement age is 65 or 60 under amended terms and whether termination at 60 was lawful.
Employment law – retirement age – interpretation of revised terms and conditions and savings clause – whether general 2007 retirement age incorporated into individual contracts. Contract interpretation – Endumeni purposive/contextual approach; avoidance of rendering words superfluous. Variation of terms – lawful consultative amendment, acquiescence and employer’s contractual right to terminate on notice. Remedy – specific performance/reinstatement not readily granted in employment contract disputes.
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25 November 2019 |
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Reported
An arbitrator’s criminal-law focus produced an unreasonable reinstatement; dismissal of the employee was substantively fair.
Labour law – review of arbitration award – arbitrator’s unduly formalistic focus on proving criminal murder rather than assessing fairness of dismissal – gross irregularity warranting review. Disciplinary procedure – competent verdicts – wrongful characterisation of offence in charge sheet does not preclude conviction on competent verdict absent prejudice. Sanction – reinstatement inappropriate where police member’s reckless lethal use of service firearm at close range undermines trust; dismissal substantively fair. Civil procedure – condonation – late filing of appeal record and bench notes condoned in interests of justice where prospects of success strong.
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5 November 2019 |
| October 2019 |
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Reported
Whether internal appeal rights or unlawful delegation voided a relocation — court held neither applied and the relocation stood.
Labour law; relocation/redeployment — policy vs substantive rights; internal appeal rights under employer policy; delegation of authority by accounting authority under statutory power (section 2D); limits (or absence thereof) imposed by policy clause; collective agreement reached via consultation forum — binding effect and non-reviewability as unilateral administrative action.
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16 October 2019 |
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Reported
Retrospective substitution of an unenforceable agency-shop clause can validate prior bargaining-fee deductions if parties lawfully amend the collective agreement.
Labour law – agency shop agreements – compliance with s25(3) LRA; collective agreements – retrospective amendment and enforceability; distinction between rectification and substitution of collective agreement; bargaining-fee deductions validated by retrospective, compliant collective agreement.
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16 October 2019 |
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Reported
Employer’s refusal to implement graded upgrades constituted an unfair labour practice; arbitration award reinstated.
Labour law – Unfair labour practice (s 186(2)(a)) – Re-grading/upgrading of posts – CCMA jurisdiction – Employer’s failure to implement ECG recommendations – Evidence of employees performing higher-grade duties – Unequal treatment of similarly situated employees.
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4 October 2019 |
| September 2019 |
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Reported
Commissioner’s post‑hearing invocation of s200B without notice is unfair; s200B is not a general employer‑identity test.
Labour law – CCMA arbitration – identification of true nature of dispute – commissioner may not decide issues or invoke legal provisions (s200B) first in award without notice; s200B LRA – deeming provision to impose joint and several liability where simulated arrangements defeat the LRA, not a general test of employer identity; s198B LRA – fixed‑term contracts and deeming to indefinite employment.
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12 September 2019 |
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Reported
Allegations lacked reasonable basis as protected disclosures; dismissal for poor performance and trust breakdown was justified.
Protected Disclosures Act – definition of disclosure – requirement that employee have "reason to believe" information shows or tends to show criminality, failure to comply with legal obligations, or miscarriage of justice. PFMA – applicability limited to entities listed in Schedules 2 or 3; inapplicability precludes reliance on PFMA breaches. Occupational detriment/automatic unfair dismissal – must be causally linked to a protected disclosure. Abuse of PDA – PDA not a shield for employees whose misconduct or poor performance caused dismissal. Fairness of investigative process and termination of probation.
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12 September 2019 |
| August 2019 |
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Reported
Whether termination for community-related operational reasons breached contract and whether the employee proved breach and damages.
Employment law – Contractual termination – Whether employer’s termination for community-related operational and safety reasons breached contractual termination procedures (clause 6.1) – Plascon-Evans test – Onus on employee to prove breach and quantum of damages – Appropriate forum (BCEA v LRA) – Condonation and reinstatement of appeal.
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28 August 2019 |
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Reported
Dismissal for negligently distributing client intellectual property was fair despite charges alleging dishonesty.
Labour law – unfair dismissal – disciplinary charges – competent verdicts need not be specified in charge sheet if employee had adequate notice and was not prejudiced; negligence/gross negligence as basis for dismissal where custodian of employer/client intellectual property fails to exercise requisite standard of care; sanction proportionality.
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15 August 2019 |
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Reported
Continuation in post after probation does not automatically confirm permanency; implied extension and reasonable dismissal for poor performance upheld.
Labour law – probationary employment – whether continued employment after probation equals confirmation; extension of probation by implication to complete performance appraisal; dismissal for poor work performance – lower standard of substantive fairness for probationary employees (Item 8(1)(j)); deference to employer’s assessment and unreasonableness of arbitrator’s substitution of employer’s criteria.
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15 August 2019 |
| July 2019 |
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Reported
Employer need not always prove trust breakdown; CCMA’s reinstatement with limited back-pay was reasonable.
Labour law – review of CCMA arbitration award – standard of review: whether award is one a reasonable commissioner could make; breakdown of trust – employer not invariably required to lead evidence unless dismissal premised on breakdown; proportionality of dismissal for misconduct involving high-value metals; relevance of employee-supervisor proximity and role to sanction severity.
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24 July 2019 |
| June 2019 |
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Reported
A commissioner must apply section 3 LEAA timely; a late ruling on hearsay admissibility renders arbitration unfair.
Labour law — arbitration procedure — hearsay evidence — application of section 3 Law of Evidence Amendment Act — timing of admissibility rulings — duties of commissioner under section 138 LRA — late ruling causing unfairness — award set aside and matter remitted for de novo hearing.
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27 June 2019 |
| May 2019 |
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Public-sector employers are not automatically exempt from s145(8) security; Labour Court must exercise and explain its discretion.
Labour law – s145(7)–(8) LRA – security for stay of arbitration award pending review; Public-sector bodies – MFMA/PFMA do not automatically exempt municipalities from s145(8); Labour Court discretion – must be exercised on facts, considering material prejudice and employer’s ability to satisfy award; requirement to give reasons; LRA (s210) prevails on conflicts with other laws in employment matters.
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20 May 2019 |
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Settlement vitiated by material common mistake on legal position; threshold agreements do not bar minority unions from organisational rights.
Labour law – organisational rights – effect of private ‘threshold’ collective agreements – minority unions may seek organisational rights notwithstanding threshold agreements; CCMA settlement – vitiation for common mistake or induced misrepresentation – review of conciliation and jurisdictional rulings; joinder – necessity requires direct and substantial legal interest.
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4 May 2019 |
| March 2019 |
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Reported
A declaratory order subject to appeal cannot be executed for consequential relief absent exceptional proof and ascertainable liabilities.
Superior Courts Act s18(1)-(4) – suspension of operation/execution of judgments pending leave to appeal – exceptional circumstances and irreparable harm required to displace suspension. Declaratory relief vs consequential relief – courts should not infer or order specific performance or payment under s18(3) where only a declaratory order is extant and the lis is unresolved. Labour law – s197 LRA transfers – transfer declarations may require further proofs (identity of employees, effective dates) before execution or payment can be ordered. Execution principles – execution only appropriate where judgment is determinate and obligations/amounts are ascertainable.
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15 March 2019 |
| February 2019 |
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Reported
An employer may review a presiding officer’s disciplinary ruling under PAJA where dismissal occurred without procedural fairness.
Administrative law review of disciplinary rulings – State as employer – s158(1)(h) LRA empowers Labour Court to review presiding officer decisions – PAJA grounds (unreasonable, irrational, procedurally unfair) – pleading requirements – Bato Star principle – audi alteram partem – Collective Agreement clause on 60-day suspension rule.
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27 February 2019 |
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Reported
Commissioner’s finding of negligence (not dishonesty) and reinstatement was reasonable; appeal dismissed with costs.
Labour law – arbitration review – standard of review – whether award falls within band of reasonable outcomes. Misconduct – dishonesty versus negligence – proof of intent to falsify overtime claims. Remedy – appropriateness of dismissal versus reinstatement with a final written warning. Burden of proof – employer’s obligation to prove intentional falsification and breakdown of trust. Procedural irregularity – failure to establish existence of specific workplace rule regarding meal interval claims.
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27 February 2019 |
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Reported
An employee who accepted a retention bonus under a reciprocal ELISA must repay it if resigning before the contractual retention period ends.
Employment law – retention bonus/ELISA – retention bonus paid in advance as reciprocal contract; clause requiring repayment if employee resigns within retention period. Contract interpretation – Endumeni principles; termination/addendum requirement and acceptance of repudiation. Labour law/BCEA s34 – deduction permitted where employee agreed in writing; s34(2) reimbursement requirements not engaged. Remedies – employer entitled to contractually agreed deduction from terminal pay for early resignation.
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26 February 2019 |
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Reported
A bargaining council constitution can substantively prohibit plant-level wage demands, rendering related strikes unprotected.
Labour law – Collective agreements – bargaining council constitution – centralised bargaining; Prohibition on plant-level bargaining – substantive restraint on negotiating wages and other matters of mutual interest; Strike law – protected/unprotected strikes – s 65(1)(a) LRA; Effect of expiry of a sectoral agreement – constitution of bargaining council remains binding; Immunisation/reservation clauses in settlement agreements do not negate council-level bargaining obligations.
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26 February 2019 |
